FLOODING CLAIMS. By Andrew Williams. Last winter was the wettest since records began in It s a fair bet, then, that

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1 By Andrew Williams Last winter was the wettest since records began in It s a fair bet, then, that there may be several flooding claims arising out of the events of that winter that have yet to be resolved. By flooding claims I have in mind cases arising out of overflowing drains, surface water run-off, burst dams and so forth. So what is the law governing claims where a landowner s land has been flooded as a result of something on neighbouring property? Any claim will be governed by the laws of private nuisance whether the claimant is the owner or occupier of flooded land or the owner of a right of way over, say, a flooded track. One of Lord Denning s most often-cited quotes is from Miller v. Jackson [1977] QB 966, 980 in which he explained, The very essence of a private nuisance is the unreasonable user by a man of his land to the detriment of his neighbour. NOVEMBER

2 Shortly after Lord Denning s judgement was handed down in that case, Leakey v National Trust [1980] QB 485 was heard. In Leakey the defendants had a large earth mound on their land that was known to be liable to subsiding. One summer it started to crack. The defendants themselves did nothing about this other than inviting the claimant onto their land to carry out any necessary works. Subsequently there was a slippage of the mound onto the claimant s land. The Court of Appeal held the defendants liable. That case led to what is commonly referred to as the Leakey duty under which a landowner who knows or ought to know of a potential danger to neighbours caused by the natural deterioration of her property is liable in nuisance if she fails to take reasonable steps to avert the danger. However, liability will be established only for damage that is reasonably foreseeable. This is so even where a claim can be established according to the strict liability principles of set out in Rylands v. Fletcher (1866) LR 1 Ex 265 (Blackburn J); (1868) LR 3 HL 330 (House of Lords). This was confirmed by the Court of Appeal in May this year in Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685. I will now turn to cases that have applied this law specifically to flooding claims between private landowners. NOVEMBER

3 In Home Brewery plc v William Davis & Co. (Loughborough) Ltd [1987] QB 339 Piers Ashworth QC sitting as deputy high court judge observed that an occupier of land had no cause of action against the owner of adjoining land for allowing naturally flowing water to run down to the claimant s lower land. More recently, in Green v Lord Somerleyton [2004] 1 P&CR 33 Mr Green brought a claim in nuisance after his land was flooded. The water in question had originated from a lake on the defendant s land, come across marshland and finally flooded onto Mr Green s lower land. The judge at first instance held that the decision in Leakey v. National Trust [1980] QB 485 did not apply to cases of naturally flowing water. Mr Green appealed against this and argued that it was up to the defendants to prove that they had acted reasonably. The Court of Appeal dismissed the appeal. In the event the defendants avoided liability partly due to the provisions of a historic drainage deed. While that aspect of the case does not take this discussion further, the Court of Appeal s observations on the law and its other reasons for finding in favour of the defendants have proved illuminating. Jonathan Parker LJ observed that to treat the flow of water as an exception to a Leakey duty would be undesirable. However it was held that the burden of proving that the defendants acted unreasonably must remain on the claimant. NOVEMBER

4 He went on to consider whether the burden of proving unreasonableness had been discharged on the facts of the case, paying particular attention to the claimant s suggestion that he had been willing to assist in preventing the flooding by personally clearing so much of a dyke known as the Blocka Run as was on his land: at no stage prior to the commencement of proceedings was it made clear to the [Defendants] what it was that Mr Green expected them to do with a view to removing or reducing the risk of damage... Nor, for that matter, did Mr Green take any step himself with a view to removing or reducing that risk. Any suggestion on his part that he would be willing to clear his stretch of the Blocka Run was made, it appears, after the dispute had arisen; and in any event such suggestion as may have been made by Mr Green to that effect was dismissed by the judge as being vague in the extreme. What, then, should the [Defendants] have done? As to the clearing of the Blocka Run, there can be no doubt that a joint effort by the Trustees, Mr Green and the other riparian owners to clear the Blocka Run would have substantially reduced (although, on the judge's findings, it would not have eliminated) the risk of water from the lake flowing onto Priory Marshes. But it does not lie in Mr Green's mouth to complain that the Trustees failed to initiate any such joint effort when he did not attempt to do so himself. NOVEMBER

5 In short, Mr Green had not made clear to the defendants what action he required them to take to reduce the risk of flooding and, further, he himself did not take sufficient steps to reduce the risk. Most recently, in Vernon Knight Associates v Cornwall D.C. [2013] EWCA Civ 950 a highway authority was sued in private nuisance. The claimant s case was that the council s failure to comply with its duties under section 41 of the Highways Act 1980 had led to its drains flooding to an entire holiday village. The Court of Appeal held that a landowner owes a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on her land from causing damage to neighbouring property. All the circumstances are relevant to determine the extent of the duty. This includes the extent of the risk of damage, the available preventative measures, the costs of such measures, the resources of both parties and in the case of a defendant that is a public body the competing demands on the public body s resources including the public purposes for which they are held. In the circumstances the council was found liable. NOVEMBER

6 Applying the above law to the facts of any given case will rarely be straightforward but my experience of litigating this kind of claim leads me to draw attention to the following questions. Has the defendant acted reasonably? In particular is the claimant able to establish more than that the defendant is the owner of land from which naturally flowing water has percolated onto the claimant s land through no fault of the defendant? Was the damage reasonably foreseeable? Did the claimant tell the defendant what she wished it to do to remove the risk of flooding before she issued proceedings? Clearly this will be relevant to costs but it is apparent from Green v Lord Somerleyton that this may also impact on the question of whether the cause of action is made out in the first place. ANDREW WILLIAMS ATLANTIC CHAMBERS, LIVERPOOL This publication is intended to provide general guidance only. It is not intended to constitute a definitive or complete statement of the law on any subject and may not include more recent changes since the date of publication. It is no substitute for legal or professional advice in any case. Any views or opinions expressed in this article are those of the author only. NOVEMBER